Legal Commentary

Aaron Bruhl had an interesting post on a recent GVR of a case decided five years ago, raising the question of how the appeal could have been sitting around for so long.  I recently posted an SSRN draft co-authored with a former student on three cases that the Court held on the "Special Docket" from the 1960s to the 1990s.  Henry Rogers Anderson v. Kentucky (S-1), Melvin Rees v. Peyton (S-2), and In re Disbarment of Diana Kearny Powell (S-3) were kept on the special docket without disposition until the parties involved died of natural causes.  It is fairly clear why the Court initially held the cases.  Anderson and Rees were capital cases involving incompetent defendants (Anderson a Notre Dame-trained lawyer), and it is understandable that the Court held them as it approached the death penalty moratorium that ended in 1977.  

Powell was a bar discipline action against a lawyer with a number of professional connections to members of the Court, particularly Warren Burger.  She had been disbarred by the D.C. District Court and Circuit for accusing Warren Burger of misconduct for ruling against her in a case.  It is understandable, maybe, that the Court delayed her Supreme Court disbarment while Burger was being nominated for the Chief Justiceship and assuming office.  What is not so clear from the Supreme Court files is why these cases remained undecided until after all the parties died. 

If in the 1960s, the Court wanted to save incompetent men from execution, surely after Furman and after their death sentences were commuted, there was no further reason for unique treatment.  Anderson and Rees did not fall through the cracks; there were memos to the file and even conference listings over the decades.  The there is even less evidence to explain Powell, because the Clerk's records in the National Archives are sealed, but it is hard to imagine any justification consistent with due process and the rule of law for leaving her case in limbo across four decades. 

Writing about Rees, Phyllis Crocker hypothesized that the Court did nothing because it did not want to make a bad or embarasing precedent. See Not to Decide is to Decide: The U.S. Supreme Court?s Thirty-Year Struggle with One Case About Competency to Waive Death Penalty Appeals, 49 WAYNE L. REV. 885 (2004).   While this is reasonable and might be correct, I don't fully buy it, at least now, because the Court is skilled at avoiding explanation when it wants to; it could have remanded the cases, and whatever the courts below did, denied whatever cert. petitions came back to it.

Do you have a theory, or unprivileged information, about why the Supreme Court kept these cases on ice for so long?